G v E (Child_abduction)(Repudiatory intention)(Habitual residence)

In Hague Convention proceedings, wrongful retention may occur before the agreed return date where the travelling parent repudiates the temporary nature of the stay by an objectively identifiable act or statement, supported by a subjective intention not to return. A private, uncommunicated decision is insufficient.

Habitual residence is a child-focused question of fact. The court must assess the child’s integration in the social and family environment, including the stability and quality of the residence, schooling, social life, family connections and the practical significance of relationships in each country. Parental intention is relevant but not determinative. The children became habitually resident in England before the repudiatory retention, so the Hague Convention application failed.

The father sought the summary return of two children to Australia under the Hague Convention on the Civil Aspects of International Child Abduction 1980, incorporated by the Child Abduction and Custody Act 1985. The children had travelled to England with their mother in July 2017 for an agreed visit which was extended after the maternal grandfather’s death.

The mother accepted that retention had become wrongful by March 2018, but disputed the earlier date advanced by the father. The central questions were when repudiatory retention occurred and whether, immediately beforehand, the children were habitually resident in Australia or England. The Article 13(b) defence was not determined because the application failed on habitual residence.

1. Application dismissed. The children were habitually resident in England immediately before the wrongful retention. The father’s application for summary return therefore failed.
2. Following In the matter of C and another (Children) [2018] UKSC 8, retention can become wrongful before the agreed return date. There must be a subjective intention not to return and an objectively identifiable act, statement or combination of acts showing repudiation of the left-behind parent’s custody rights. A purely internal and unmanifested decision is insufficient. The court should avoid speculative cross-examination about undisclosed thinking.
3. The alleged school application, shipping enquiries, storage arrangements, return tickets, school uniform, schooling and December communications did not establish repudiatory retention in August or December 2017. The mother remained genuinely uncertain about the future. The objectively verifiable repudiation occurred by the end of March 2018, when her correspondence showed that the possibility of returning with the children had ended.
4. Habitual residence corresponds to the place reflecting some degree of integration by the child in a social and family environment. It is a factual and child-focused inquiry. Stability is qualitative rather than merely quantitative, and parental intention is relevant but not determinative.
5. The children’s Australian integration was comparatively shallow. Their English integration was strengthened by existing maternal family relationships, prior preschool and friendships, continuous schooling, community activities and stable accommodation. Their mother was their principal day-to-day carer, while their father’s work and limited involvement made him a less central figure in their lives. By late December 2017 or early January 2018 the children had firmly integrated into England and had put down roots there.
6. Since the children were habitually resident in England before the repudiatory retention, Article 3 was not satisfied. The court did not need to determine the mother’s quasi-settlement defence under Article 13(b).

The application was issued on 9 August 2018. It was first heard ex parte by Knowles J and subsequently considered by Parker J on 22 and 30 August 2018 before the final hearing before Her Honour Judge Hillier. The High Court dismissed the father’s application.